ML19329F089

Answer to Supplemental Motion to Quash Subpoenas on Grounds of Confidentiality.Motion Should Be Denied.Certificate of Svc & Exhibits Encl

ML19329F089
Person / Time
Site:	Midland
Issue date:	02/26/1973
From:	Golden T, Ross W, Watson K CONSUMERS ENERGY CO. (FORMERLY CONSUMERS POWER CO.), WALD, HARKRADER & ROSS
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8006190895
Download: ML19329F089 (28)

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UNITED STATES OF AMERICA ATOMIC ENERGY COMMISSION In the Matter of )

) Docket Nos. 50-329 CONSUMERS POWER COMPANY ) and - 30A (Midland Units 1 and 2) )

Applicant's Answer.to Supplemental Motion to Quash Subpoenas on Grounds of Confidentiality Pursuant to Section 2.730 (c) of the Commission's Rules of Practice, 10 C.F.R. Part 2, and the Board's Third Prehearing Conference Order (p.4-5), Consumers Power Company (hereinafter " Applicant") answers the supplemental motion to quash filed by twenty-one Michigan municipals to Febru-ary 20, 1973. This Motion objects to Applicant's document requests 4 and 5 and _nterrogatories 7, 8, 45, 46, 59 and 60, on grounds of relevance, burden and confidentiality.

Applicant's discovery demands were served upon the municipals ' counsel on December 18, 1972 and on Janu-ary 9, 1973, said counsel filed a Motion to Quash. Except for a cryptic parenthetical phrase on page 3 of their 27-page Motion (which made no reference to specific discovery items), the municipals first raised the issue of confiden-tiality during the course of the Board's rulings as to interrogatories 45 and 46 at the Prehearing Conference of February 12, 1973 (Tr. 289 et sec).

At the Prehearing Conference and in its Prehear-ing Conference Order, the Board rejected the twenty-one municipals' claims as to burden and relevance with respect THIS DOCUMENT CONTAINS P00R QUAUTY PAGES

-8. 0 o a y y y y

to many items , including interrogatories 45 and 46, and ordered compliance with these items. (See Third Prehear-ing Conference Order (p.4) and Tr. 288, 299). However, despite the Board's apparent concern about the untimeli-ness of the municipals ' objections on grounds of confid-cntiality (Tr. 292), the municipals were given leave to file a "brief indicating the bases for their conclusion that a confidential relationship exists which bars the production of the information requested in these three interrogatories " (emphasis supplied). Order, p.4.

Applicant submits that the Supplemental Motion to quash certain items of its discovery demands should be summarily denied for the reasons set forth below.

I. The Supplemental Motion Raises Issues Beyond the Scope Permitted by the Board The Motion fails to ccnfine itself to the par-ameters set forth in the above-quoted excerpt of the Board's order. First, the Motion seeks to retry the issues of relevance and burden, even though the muni-cipals' positions in these respects were exhaustively briefed, argued, and rejected by the Board.~1/ Second, i

1/ For example, the Motion complains that the requests are " virtually unlimited" in scope (p.3), that a show-ing of " relevance" is required (pp. 5, 8 and 9), and that the discovery is not "necessary" to Applicant's case (pp. 5, 7 and 8). These same arguments were l presented in the municipals ' Motion to Quash (pp.

l 5-24) and at the Prehearing Conference (Tr. 192-l 200; 213-216).

l l . ..

in contrast to the three interrogatories which the Board's order granted the municipals leave to challenge, the Supp-lemental Motion objects to six interrogatories and two document requests.-2/

Applicant therefore urges the Board to reject the filing of the Supplemental Motion, at least to the extent that the Motion raises objections to other than the three interrogatories specified by the Board and to the extent that the Motion discusses issues of relevance and burden.

II. The Information Which Applicant Seeks is Relevant and Necessary to Applicant's Defense and Compliance is Not Burdensome Since the Board ordered that supplemental pleadings to the Motion to Quash to be restricted to the question of confidentiality, the municipals ' arguments relating to burden and relevance will not be re-litigated here. Rather ,

2/ The interrogatories are 7, 8, 45, 46, 59 and 60; the document requests are iters 4 and 5. The Board's order permitted challenges only to "45, 46 and one other" (p.'). Since the discovery demand was served upon the municipals' counsel almost two months prior to the Prehearing Conference, there is no apparent justification why the challenged demands have now been expanded from the three items discussed at the Conference (Tr. 298) to eight. This is particularly so with regard to items 59 and 60, to which no obiec-tion was raised (Tr. 303), even though the Board con-sidered these items at the Conference af ter the issue of confidentiality had been discussed at length (Tr.

290-298).

Applicant incorporates by reference Section B throagh D of its " Answer to Motion to Quash . . . , filed February 7, 1973, and its oral argument at the Prehearing Confer-ence (Tr. 186-191; 205-212), where issues of relevance and alleged burden were discussed at length.

Subsequent to Applicant's aforementioned plead-ings, the statements of Department of Justice at the Pre-hearing Conference re-enforced Applicant's showing of relevance and need for the requested information. When asked by Board member Clark whether the Department "would '

be willing to exclude any evidence with regard to agv small municipality or small power company who is not an intervenor in this case", the Department's counsel replied, "No, your honor, I would not". (Tr. 217) (emphasis supplied) .

Thus, since the Department refuses to confine its case to the intervenors , Applicant's defense must include discovery of information about the market structure and competitive environment of these twenty-one municipal non-parties located in the lower peninsula 6f Michigan.

It should be also noted that the municipals '

purported concern about document requests 4 and 5 (See Motion, p.3) is moot in view of Applicant's Application for Issuance of Subpoenas Duces Tecum, filed February 16, 1973. In that filing, document request 4 has been amended

l l

to delete "all document" demands; it now seeks only spec-ific reports, studies, correspondence or simply calls for any documents which show the desired information. Docu-ment request 5 was considered at some length by the Board (Tr. 226-228) and, except for subpart 5(d), the Board ordered compliance (Third Prehearing Conference Order, p.3). Request 5 (d) is not included in the Applicant's aforementioned filing of February 16, 1973. Thus, the municipals' objection concerning the burden of complying with document requests 4 and 5 has even less merit than it did before the scope of these requests were narrowed. r III. The Municipals Make no Showing That The Identity of Their Customers is Secret or Confidential or That-Thry Will Be Adversely Affected by Disclosure of The Information Applicant Requests As the municipals concede (Motion, p.4), trade secrets and other confidential information are not privi-leged. 8 Wright and Miller Federal Practice and Procedure, 52043 (1970 ed. ) (stating that lack of privilege is "well-settled"; see cases cited therein at fn.16, p.300). The Rules of this Commission do provide that "for good cause shown", a person may seek a protective order that "a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way". (Section 2.740 (c) (6) . This rule, which is identical to Rule 26 (c) (7) of the Federal 1

_ _ _ . _ _ _ _ _ _ _ J

Rules of Civil Procedure, clearly requires the person resisting discovery to establish that (1) the information sought is, in fact, secret or confidential-3/ and (2) that such person will be harmed by the disclosure of such information. ~4/

1. Confidentiality: The challenged discovery requests seek to ascertain various relevant characteristics of the municipal systens ' largest customers, the efforts utilized to attract and serve such customers, and the rea-sons why the number of such customers has changed during the past decade. According to the municipals, disclosure of this information may reveal the identity of its retail customers (Tr. 296-297).

However, at the Prehearing Conference Applicant offered to accept responses to the challenged requests in coded form (Tr. 290). Although pressed to do so by the Chairman (Tr. 297), the municipals fail to offer any

" specific" reasons why this approach will not adequately protect them. Rather, their Motion simply repeats the unsupported allegation that "in most instances coding

3/ E.c., Singer Manufacturing Co. v. Brother International

, Corp., 191 F. Supp. 322 (S . D . N . Y . 1960) (sales and price

! data or a competitor is not " trade secret".)

4/ E.g., Essex Wire Corp. v. Eastern Electric Sales Corp.,

48 F.R.D. 308 (E.D. Pa. 1969) (no showing of competitive disadvantage resulting from disclosure).

of the information would provide minimal protection" .

(Motion, p.13). Such a statement by counsel clearly does not constitute a suffief.ent showing of good cause for the relief which the municipals seek. Sacks v. Frank H.

Lee Co., 18 F.R.D. 500 (S . D . N . Y . 1955) ; Essex Wire Corp. ,

supra.

In any event, the identity and characteristics of the municipals ' custcmers do not constitute a trade secret or other confidential information. There is no question that the municipals ' large customers use electricity; since the area in which they are located is usually served only by Applicant and one municipal system, the identity of a customer's electric supplier can hardly be considered confidential or secret.

In addition, Michigan law requires that the municipals grant any person (including the Applicant) access to the type of information it seeks here. The Michigan s tatutes declare that all " books, papers or records created or received in any office or agency" of any political subdivision of the State of Michigan are "public property, belonging to the people of the State I

of Michigan". Michigan Code of Laws $28.759 (See Attach-I ment A) . Moreover, it is a disdemeanor for the official custodian of "any county, city, or township records" to fail to permit examination of the " records and files in l

l l

~

his office" by "any person having . . . any lawful pur-l pose". (Emphasis supplied) Michigan Code of Laws S28.760.

See Attachment a.

By this legislation, the State of Michigan

" intended to assert the right of all citizens, in the pursuit of a lawful business, to make such examinations of the public records in public offices as the necessity of their business might require . . ." Burton v. Tuite, 44 N.W. 282, 285 (Mich. Sup. Ct. 1889).-5/ Even as to the records in those subdivisions not specified in the

,6_/

statute, Michigan common law affords citizens who demonstrate a requisite interest to inspect public records. Nowack v. Fuller, 219 N.W. 749 (Mich. Sup. Ct.

1928) (newspaper editor is interested person in public information) (The Burton and Nowack cases are attached as Attachment B).

-5/ The statute continues to be liberally construed. See Michigan Attorney General's Opinion No. 2786 (Attach-ment C) which interpreted the statute to require the disclosure of the identity of county employees ; see also

an unpublished Attorney General's opinion (Att. C).

l 6/ All but three of the twenty-one municipals herein are cities. Three (Clf ton, Paw Paw, and Chelsea) are villages.

i

Thus, since the information Applicant seeks is, in effect, public knowledge, the municipais have clearly not sustained their burden of de=onstration that the information sought in the =anner set forth by-Applicant constitute trade secrets or other confidential infor=ation.

2. Harmful Effect: Even should the information which Applicant seeks be deemed confidential, the =unicipals have

=ade ne showing that they will be co=petitively affected in any adverse way by its disclosure. As the Department of Justice observed in its advice letter in this proceed-ing (p.3), "conpetition in regulated industries is not the hour by hour co= petition of the =arketplace" . For exa=ple, applicant's rates are regulated and are unifor= throughout its service area, so that it cannot reduce its rates to attract a particular customer. Th us , the =unicipals do not explain, and Applicant cannot fatho=, what cc=petitive disadvantage would accrua to the municipals even if the infor=ation which Applicant seeks did in fact reveal the identity of their larger customers .

But, assuming arguendo that the municipals =ight be disadvantaged by disclosure of the recuested information, the municipals' Motion must still be denied. Where, as here, the relevance of the information sought has been established,

there is ample case law-7/ supporting the disclosure of customer information -- including such information from non-party competitors in antitrust cases. Particularly in point is Covey Oil Company v. Continental ~ Oil Company, 340 F.2d 993 (loth Cir. 1965), cert. denied 380 U.S. 964 (1965). There, several large, integrated oil ec=panies (including Continental Oil) were charged with violations of Section 1 and 2 of the Sherman Act, inter alia, for

" controlling sources of supply, by fixing and maintaining wholesale and retail gasoline prices , and by suppressing cc= petition [by small competitors]" . 340 F.2d at 995.

The defendant ec=panies caused subpoenas duces tecum to be served en many of their small non-party competitors; these subpoenas required production of information relat-ing to the non-parties ' purchase price of gasoline, their sale prices and gallonage of gasoline sold other than at retail, and the number and location of their competi-tors' retail customers.

-7/ United States v. American Optical Company, 10 F.R. Serv.

2d 26a.32, case 1(N .D. Cal. 1966) (non-party's sales and profit data); United States v. Aluminum Company of A=er-ica, 193 F. Supp. 251 (N.D.N.Y. 19 60) (non party cc= peti-tor's production figures) ; United States v. Lever Bros.

! Co., 193 F. Supp. 254 (S . D . N . Y . 1961) (sales and produc-tion data of non-party competitors) ; VonWitte v. American Elite, 20 F.R.D. 221 (S.D.N.Y. 1957) (customer lis t of cc=-

petitors) .

The Tenth Circuit affirmed the district court's refusal to quash these subpoenas on grounds of confident-iality. The holding of the Court is equally applicable to the instant case :

[W]e believe that the showing (for pro-duction] is sufficient under the Sherman Act charges of restraint of trade and monopoly by fixing gasoline prices and suppressing competition of independent jobbers. Exploration into the businesses of admitted rivals may well reveal the validity or invalidity of the charge of competition suppression . . .

The cases relied on by appellants are not apposite. In neither Hartley Pen Co. v. United States District Court, 9 Cir., 287 F.2d 324, nor United States

v. Serta Associates, Inc., N.D. Ill.,

29 F.R.D. 136, was relevancy established. [g/]

Appellants contend that general rele-vancy is not sufficient to require a non-party witness to divulge trade secrets.

The claimed trade secrets do not relate to processes, formulas, or methods but rather to price, cost, and volume of sales of gasoline . . .

The position is based on the fact that Con-tinental and appellants compete in the whole-sale market. No absolute privilege protects the information sought here from disclosure in discovery proceedings. The claim of irrep-arable competitive injury must be balanced against the need for the information in the preparation of the defense. Judicial inquiry should not be unduly hampered. Inconvenience to third parties may be outweighed by the pub-

[8/ These two cases were also extensively relied upon by the municipals. (Motion, pp. 4, 5, 6, 8 and 9 ) . }

lic interest in seeking the truth in every litigated case. [ Footnotes omitted] . 340 F.2d at 998, 999.

SimilarJ,, as'the court held in Service Liquor Distributors v. Calvert Distillers Corporation, 16 F.R.D.

507 (S .D. N. Y . 1954):

(I} n an action under the antitrust laws, based upon on alleged abuse of competition, compe-titor's business records , where good cause has been shown, are not only not immune from in-quiry, but are precisely the source of the mos t relevant evidence. 16 F.R.D. at 507, 508.

(Emphasis supplied. )

Thus, not only do the municipals ignore the fact that the Board has rejected their claims based upon relevance and has ordered compliance with the challenged demands, they also fail to explain why the informaticn which Applicant seeks is confidential or requires any pro-tection.

WHEREFORE, Applicant submits that the Supplemental Motion of the twenty-one municipals should be denied.

Respectfully submitted, Wm. Warfield Ross Keith S . Watson Toni K. Golden February 26, 1973

UNITED STATES OF AMERICA ATOMIC ENERGY COMMISSION In the Matter of )

) Docket Nos. 50-329A CONSUMERS POWER COMPANY ) and 50-330A (Midland Units 1 and '2) )

CERTIFICATE OF SERVICE I hereby certify that copies of APPLICANT'S ANSWER TO SUPPLEMENTAL MOTION TO QUASH SUBPOENAS ON GROUNDS OF CON-FIDENTIALITY , dated February 26, 1973, in the above-captioned matter have been served on the following by deposit in the United States mail, first class or air mail, this 26 th day of February,1973 :

Jercme Garfinkel, Esq., Chairman Dr. J. V. Leeds, Jr.

Atomic Safety and Licensing Board P. O. Box 941 Atcmic Energy Cc==ission Hous ton, Texas 77001 Washington, D. C. 20545 William T. Clab ault , Esq.

Hugh~K. Clark, Esq. Joseph J. Saunders, Esq.

David A. Leckie, Esq.

~

P. O. Box 127A Kennedyville, Maryland 21645 Public Counsel Section Antitrust Division James Carl Pollock, Esq. Department of Justice 2600 Virginia Avenue, N. W. Washington, D. C. 20530 Washington, D. C. 20037 Joseph Rutberg, Jr., Esq.

Antitrust Counsel for AEC Regulatory Staf f.

Atomic Energy Commission Washington, D. C. 20545 Wallace E. Brand, Esq.

Antitrust Public Counsel Section P. O. Box 7513 Washington, D. C. 20044 Atomic Safety and Licensing Board Atomic Energy Commission Washington, D. C. 20545 Kei th S . Watson

ATTACEMF. lit A Michican Code of Laws Sections 28.759 and 28.760

828.759 Title N-- Orimes 256 enArrza Luz Ptraua asconos I28.759 Matilating, removing or detaining public records.]

Szo.491. All received in any[office official] books,ofpapers or agency or records'+

the state of Michigan [erested or its by or political subdivisions], are + declared to be public property, be-longing to the people of the state of 3fichigan +. [All books, papers or records shall be disposed of only as provided in section 13e of Act No. 51 of the Public Acts of the First Extr'a Session of 1948, as added, being section 18.13e of the Compiled Laws of 1948, sec.

tion 5 of Act No. 271 of the Public Acts of 1913, as amended, being section 399.5 of the Compiled' Law's of 1948 and sections 2137 and 2138 of Act No. 236 of the Public Acts of 1961, being sections 600.2137 and 600.2138 of the Compiled Laws of 1948.]

Any person who shall wilfully carry away, mutilate or destroy any of such books, papers, ' records or any pa,rt of the same, and any person who shall retain and continue to hold the possession of any books, papers or records, or parts thereof, belbging to the aforesaid offices + and shall refuse to deliver up + [such] books, papers, records, or parts thereof to the proper officer having charge of the office to which + [such] books, papers, or records belong, upon demand being made by such officer [or, in cases of a defunct office, the 3fichigan historical commission], shall-be guilty of a Eds-demeanor, punishable by imprisonment in the state. prison not more than 2 years or by a fine of not more than $1,000.00.

(CL '48, 9 750.491.)

History. Statutory references.

As amended by Pub Acts 1952, No. Section 13e of Act No. 51 of 1948 119, eff September 18; 1964, No.147, (1st Ex Sees), above referred to, is eff August 29. Il 3.516(13c), supra; section 5 of Act Soo Pub Acts 1851, No. 6; CL '57, No. 271 of 1913 is i 15.1805, supra; I 5906; CL '71, I 7751; Pub Acts 1875, No. 208, eff August 3 How I9347; sectione 2137 and 2138 of Act No.

CL '97, f 11361; CL '15 i15079; CL 236 of 1961 are Il 27A.21J7,27A.2138,

'29,117018 '

supra. ,

T - - -

9 28.7GO Inspection and use of public recordsIcopies; removal

• crders.] Src.492. Any officer having the custody of any county.

tip or township records in this state who shall when requested fait or neglect to furnish proper and reasonable facilities for the inspection and examination of the records and files in his-office pnd for making memoranda of transcripts therefrom during the usual business hours, which shall not be less than 4 hours4.62963e-5 days <br />0.00111 hours <br />6.613757e-6 weeks <br />1.522e-6 months <br /> per day, to any person having occasion to make examination of them for any lawful purpose shall be guilty of a misdemeanor, punist.able by imprisonment in the county jail not more than 1 year, or by a fine of not more than.$500.00. The custodian of said records and files may make such reasonable rules + with reference to the inspection and examination of them as shall be necessary for the protection of said records and files, and to prevent interference with the regelar r

discharge of the duties of such officer. + [The] officer shah pro- ..

hibit the use of pen and ink in making copies or notes of records and files in his office. + No books, records and files shall be re-moved from the office.of the custodian thereof 4,Jexcept by the order of the judge of Any court of competent juYiadiction, or in response to a subpoena duces te::um issued therefrom {,, or for audit purposes con' ducted pursuant to Act No. 71 of the Public Acts of 1919, as amended, being sections 21.41 to 21.53 of the Compiled Laws of 1948, Act No. 52 of the Public Acts of 1929, being sections 14.141 to 14.145 of the Compiled Laws of 1948 or Act No. 2 of the Public Acts of 1968, being sections 141.421 to 141.433 of the Com-piled Ltws of 1948 with the permission of the official having custody of the records if the official is,given a receipt listing the records being removed]. -

(CL '48, 9 750.492.) -

History.

As amended by Pub Acts 1970, No.

109. imd eff July 23.

See Pub Acts 1899, No.133, ima eff June 1; CL '15, 6 3449; CL '29, II2713-2715.

Statutory references.

Act No. 71 of 1919, above referred to. is il 3.591-3.604, supra; Act No.

52 of 1929 is il 3.241-3.245, supra; Act No. 2 of 1968 is Il 5.3228(21)- '

5.3225(33), sopra.

ATTACHMENT B Burton v. Tuite, 44 N.W. 282 and Nowack v. Fuller, 219 N.W. 749

OS2 NORTHWESTERN REPORTER.Vor 44. (Mith, tre officen, and for mnking memoranda or tranneriptn therefrom, during the unun!

busintwa hourn,to all pernons having occa.

selon to make examination of them for any Inwful porpose: provided, that the cunto.

dian of sald recortte nnd illen may makenuch rennonab'e ruten and regulations with refer.

ence to theinspection and examitintion of thern as shall be 1 &twary for the protee.

tion of said records and tilen, and to pit.

vent the interference with the regular d!*.

charge of the ehitkw of nuch officer: nnpondent Imm frtsplently refuel tu town records aball furnish proper and rea*onable permit yonr trintor to inspirt the m.t!&.

facilities for the inspection and czainination of the book nbove referred to,' nn have al*o hW recorde and Sles in their oinces, anJ for inaking e.ubordinatee; nnd. if at times un in9 w mt nioraude or transcr: pts therefrom. to all persons tion of nuch tvcordn han gurn grantng. gI having occasion to n.ake cxasuination of theuz for any lawful purpose. Eld, that the czarnination ha'i alwnyn heen necompanh'd with irweit-of city tas sales books. mado up by the rectiverof lug langunge. Imidying tlmt relator wp taxes and by him handed over to the city treas- taking time which belnuged to the pubbr.

urer, could not bo refmied on the cround that they and that he inuat hurry,or that theinab were not public records although thero is no ex. would be tnkett fruin hitu: nnd this, t&L re e tatutory pronsion that such books shaal stithungh tio other parth n were ptwnt t e

2. An abstractor cannot be denied sacas to be wulted upon or uttemled to.nnd thoud such books un the grouuJ thatheis sanply secking luisch tunty time wan con *umed by .ar t information for pr vato gain. tren>urer in t utkhtg auch compInint* tha's

. wouhl b n,ve==nry for reintor to in*la t IIcnry A. f 7mncy, for relator. John W. nnd make nnch memorntion un he nmin!J

.lleGrath, for renpumlent. he ~uuhl have mvm to ehe nvonia with-ou , univuxonnble hiterruptlun. A cl.r.

Sto n* c. J. The rehttor nnks for the writ woubt b. detniled to nee timt the rtint..*

of mamfamns to compel the tvmpondent to did not mutilate the rtvordn, with inntre-permit him to innpert and examine the ree- tiona not to permit r 4tur to take tL-ord* nnd illen in the city trennurer'n ot!!ce bookn. Ilut more frequently relator ha*

ut Detruit, uml to furnlah proper and ren. teen told by naid city in nxurer ani! L*

nonnble facilitlen for e uch in3]nttion und euhordinntes that he could nut see the re examination, und for mnking memornnda unin. Ite>l omient han followed this "4 and tranmcripts from muchlibm muni nrordn, e.tructive cour-e for n long time, to 19 in cotnpliance with Act .No. 7tG, l'uh. Actn great annoyance and discomfort ol relata.

Iwu. The netin qma tion rendaa*follown: nml in face of the fact ilmt therewa* laT

• • That the otLeern having the cu>tody of ed ha him ultiew n notice to the eff.et th..t a-any county, city, or town ricords in thin informatlun ih sirnt by the public wont f

• ntate > hall furnish priqrr uma rennonnble promptly ntut thivrf nity furutalmi. 71" facilithm for tho innlartion and exntulun. n wpumlent ut une time inforun I reta tion of the recuade asni tiliw hithelrtrapoct- that it was a niattee of tuoney with h N

1!ich.) 11UILTON e. TUITI . 283 and that,If relator would pny him $5 per intor told liltu he need not attend to it month, rehitor couhl have what necess ho then, na im Mmid wnd him clerk for itt pleased to the reconin in onld treasurer'n Inbl the memornndum on the Inble, and artice. July :'. Iw3. reintor enthwl nt the placed a paper-weight upon It. Ibwpomt.

treasurer'n ottlec nt nhout 11 o' clock A. M., ent came in nlunut then,In n hIgh teluper, and rnpnwted the privilege of lu=pecting nnd with womo profanityordered the reint-somenf l he nnica-Innoku. Iteninnnteni n= keel or smt of the ottice, which order reintor if the infoa mnthm wnnted won for rehe f or'n obeytwl. Ituring the wmele time of thin in-privnte immimws. Iteintor regdied that terview then= wna no either gn rnon in tha kichnnl M. s'oam wnn t he owner of lot 'J8.- ottice on hu Incan, unhwn he wna secluded in husmn'ncetion of theThompnam farm, in t he privnte sullce of rewpondent, in the city of Detroit, and that he had em. T3 e nwinmdent in him anwwerdententhnt i

played reintor to see if certain tax.anien tin

• Innikn referred to by rt'ntor nre public which hml turn previously mnde were utill reconia, or that they are made no bychar-held by the city or disponed of, and if slin- ter, uruinnnce, or In w, or that they are re-poel of towhatn. Rivpondent requewtol quimlbyInw to be kept.or that rebitor.or relator to write out whnt he wanteel on a anyterson except n*pondent.lsentitled to piece of paper, which he did. The pniwr thepo=nennion of Maid benekn or entitled to .

was handed to n clerk, who was entled by take them out of the cuntenly of re=tumdent, p-pondent to wait on relator. Thr pnr- or to make extrnets fr em them, except un-cet ofland hnd been sold for six muccennive der the immediate supervision of nwpon-years.nnd it beenme necesanry to Inn [ntt dent. liedenies thutitin theunivernalprac-six diffettnt snien-books. That the stnte- ticcin city otlicen to permit alt persons dent r-mentwhich reintor had made for the clerk, Inc to inspect the sabl books to have free a copy of whleh he retained, informed the necena to them orthat muchin theuunge,or c!crk the number of the book requiml, the that auch u*nge han becomo so well entab-pue of the lumk and the line on the pnge limhed as to have the force of n common-which he de% ired to inspect. That unid law custom. IIe denicu thnt rela tor han been clerk produced four of the books requircel, onlinarily allowed to inspect such books anil they were hastily inspected by reintor, without ohntruction or re8traint,it by ob.

'.at he was not permitted to harrille them. struction or rentraint in meant a dental of Duringthe examination.whichcould hard- tho right of necenn to nnld books without the ly have occupied 10 midhtes, renpondent supervision of t hecity trenpurer. lie denies hhnnellsat by, discunning the general sub- the right which reintor weks to establish hts of relator *n rights, and apparently in la recognized orconfirmed by anyactof the ao wine hurried by the prewaure of ofiletal legisla t u re. Ile denten that at any time dutics. That, after reintor had innpceted this respondent, or, by thin respondent's the fourth volume, said clerk-taking his direction or nothority.nny deputy or clerk cT from the language and actionn of his in renpondent*m o!! ice, has necompanied employer, said re=pondent-abruptly, vio- nny inspection of the books which relator tratly, and untensonably refused to pro- has been allowed to make with insulting

+ ice the other two books arquested, and la ngua ge. Ile denies that relatorhnsbeen Wtthe room. That relator then asked the told by respondent that he ( the reintor) rity trennurer himacif to produce the two could not see the recorda, lie denies that tekn n*ked for,butunid trensurer refume 1. renpondent han been guilly of obstructing IVlatnrthen tohl responden t that ho would relator. lie denien that rempomtent de-Pt the books himself if he (rempondent) riven an income trum abutractaamounting nuuhl permit him (reintor) to go into the to $1.001 per annum.or nny much num. lie room where said booka wero.for that pur- denten that thin responitent han ever said We. Ilespomtent told him he could not that if rebstor wouhl pny rc=pondent $5 ainto thnt room, nn I nhwolutely refuerd per month during him term of ollice the to permit him to see the bookn he denired. relator could have whatever neccan he de-i:.lator offemt renpondent $10 per month wireil to the books in respondent's ottice.

L be accorded much treatment am accord. lie denica that he made une of the expres.

4 to the public. Respondent refuned the nion found oc pnge 3 of reintor'n petition.

4r. Reintor then formally demanded viz. " God damn quick, too." !!cspondent "e richt to inspect the two books he hnd alwo set = forth in him answer that rebitor in 84rd for before, nnd reminded respondent seeking the informntion from the bookn as 4 the statute. Itclator said that if he n mntter of merchandine to nell to othern.

'm11 not nec the bookn he should nak for That up to July 2,1w4,nbetrnetscould on-

• tawh m us. 1:enpondent told relator to ly be procumn of the city trenxurer, nnd

'mmlam" if he wanted to; thnt the that the trensurer, whose ottice expimt in U were in the vnuit, und rvtntor coubl lw4, renlized from $1..*M to $;',0nonnnuntly

' t ca them; and that nothing but nn or .

i from tax nbstrnetn.nnd that heininformed

• fonu the common etmncil would make reintor paid such otticer for the privilegrof

. h mo re them. Ile tohl rela tor to lenre mnking n eopy of the booku of said entice, n nttan memorandum of whnthe wante I, nnd did mnke nnd une the name for privnte il relator rr fumi to do thin, nn he had gain. That for one yenr prior to July 1

• iv furnl%hed re=ponden t with one 1%w, rehitor pnhl $.% per month for thin

','hment of what he rivpdred. Ilmpond- privilege. That rispondent has nlwnys M lyame vociferouw, declami that he been rendy nnd willing to give nny lot-

'14 posed of the subject,refumed to henr owner or citizen demiring it Information an "jthmg further, and left the room. Ite- to tax chargen upon lands,and hanntways

-r then, under advice of counnel, made done no free of charga. Innista thnthe has

' p memorandum of what he wanted, the legst right to charge a umall fee for

-* uffered it to the deputy treneurer, who making out abstructs, as them in no inw

• .1 he had no time to attend to it. Ile- requiring him to mn.se them otherwise.

a 284 NORTIIWESTERN REPORTER,Vot.,44. .

Thnt thebooks in question hare been kept alao nhows that he han g1ren hond f ir . .

for tha information and convenience of the safe-keeping of thtme records. That!st, city of Detroit, and are not required to be tal fwa for nbatracta for 11 taonths enk.

kept by the city charter or any law or or. December 31, tw, were but $31 Anil $

dinance. Thnt each year,af terthe receiver finally submita that rtlator Is not entithi of taxco makes sale of lands for unpnid tonecess to thebooks of respondent'nt&.

taxes, one of said books is madeupby such at hin own pleanure, neither is he entitl~:

rrretter.nnd entered therein in the name of to firquent or enterintothat portlunoth the owner,if known, a dracription of much aponelent's ollice from which the genml pnreel of Insul, the umount of Ihe city tax, putelle la exchulnl. TLnt twinmdent in e.

nrhanel tn x, etc., the total in t, the nnme of tillnl to nu3ers t.e the exruninntion rel 19 the in rnon to whum nobl, whirts in n-untly lusoka in bla office, nant that the n4atur,a the city of th t roit; nuit nuld tunika alao n atenh r tn Infortunthm,!n pot entitini to cuttinlu hinnka for entry of nn=lgnanctit or compel rr=gumdent to give him titue to r.

. r3!emption. Therv nruin all:Chooka cim. lator, at the plennuru of relator, for h, talning from 10010 :00 pages ench. In ad- gain, and without compenantloo to rw dition,there are somenales-hooka.contain. npondent.

Ing memoranda of anins for unpntd special It is evident, from the petition an 1 ne.

assessruents. There are ulno 16, one for swer, that there is ruore or! css of ill fwla t each ward, indexes to sales-book, each of between these parties, and it is also ela which contains a dmeription of each parcel that the reintor has been in fact denied !&

tot land in that ward, with a column for access to these sales-books, and that 15 each year in whleh .to enter if sold, the respondent does not propone to pern number of the page of the males-book for such access unless be In paid thettfor: n.e that year containtng the memoranda of does he propose to furnish any facdith the sale. If a sale has been canceled, n red reasonable or otherwi>e, to the relatur 9 ink line is drr>wn through the reference flg. Inspect and examine anid bookn withmt uren. - That the books no kept are enmity pay. This right of reintor, claimed un4 subjttt to alterntlem or derncement. Thnt the ntatute,la dentnl. firnt, on the ::5._

the books afonwald are valuable, and the ihnt thi e innoks ntv not public rw. -

loss of the name.or anyof the name,wouhl Inenune there in no expnsa statute y "

be trreparable. That respondentinchnrgni vinton nnywhere that nuch books c -

by the city with the entv niul custody of kept. The e booksare tunde up i: t -

the same. That a portion of respondent's pince by the receiver of taxes, anf :-

ot!!ce is kept for the use of the public, and handed over to the city treany :

the publicis nceessarily, by means of desks, are therefore books used and k.p a railings, and wire-work partitions, ex. of the public ot!icos in the city a >

. cluded from theprivate or working depart. and theymust beconsidered puth -

ment of the ottice, and from the part con. The claim that they are private t.. . '

talning the moneys, books, and papers in accounc is absun!. They are r.eit e .

respondent's office. That relator,tn order private books of the receiver of tad..' +

to uee the right which he here seeks to es- the city treasurer, and the city of le tablish, must nocennarily be admitted to a public municipal corporation, ens : .

that portion of respondent's ottice from no private books, not even of arew .

which the generalpublicinexcluded. That not open to the ineptetton of itarif W the books referred to are kept by respond. Its doingm, and the doings of it. e,&m ent in a vault in the city tiensurer's ot!!ce, and likw in their v

• and in the same vault are other valuable and must the recore'u the public; norcan f *

• be open t N

books and papers, together with Inrge charged (or such insinttion to th sutunot therity moneyn.vnryingin amount Ing the rn:ht to examine and insrett m from $100 to Sin,u00. That to produce wnld lib 1s nud rivord*.

bookn, and a number of them, na in often llut the broad ground is al-o tako'h req uired by relator. requi ren n large n m oun t the reinfor hnn no lawful right tu b+.

of time almont itally, nnit frum lU to::Otuin. thiwe pahw-leooks without rtrocifwt*

• uten tier day have of ten f aceu consumed in the renpundent, Intnuse he le no at..'re mo doing. That troondent inhista that it la maker, and him busimw may be, an.1 h a the duty of rtwpondent in order to protect most enms, to nr!! nome pernon th- P'-

himnelt and his bondamen, to keep their mntion gnined by such examination:"'a bookn under the immedinte care, custody, he doen not come under the statute and supervision of hhunett, or uno ut his enune he ihnsi not I n re "occantua t,, r ,'

trunted employes. That during the nnonth exatninntion of them fornInwfulpur of July reintor*w purpose la not no nmchto and thnt this rase in covered and as -

look afterludividunt enacs of nnina, na it is nintor by two former deviniurit af "'

to compalv him ininutm of imle with the court: Webber v. Town!cy, M 5fd * .

otf!ce tuemornnda of the skame. I:c. pond. 5 N. W. !!cp.181: Statch Co. v. Pomf'

• ent nubinits that he is not obli;ml to pro- Afich.10.16 N. W.1:ep. 31L duce the books of Hs offlee, and supervise  !! ! undrrstand the Intter case.the C*

the inspection of the anme, to one who is of mnnd.1mris was dentnl beause t:t* I" collecting information for merrhnndine, inond Statch Company was not a ri'"

and that,!! he shim do so, he la entittrd to nor an Inhabitant.noreven a dom **

pny for it. He also submits thnt in porn tion. It did not showitscharte" ?

• other Imllieottices,-In thentliccof regleter give anvevidenceof its imm ers or nr:r ,

of dmin, tu the prohnte court, nnd in the enpabilitini. Thin court may M county clerk *n ottlee,-when infortuntion la no tuenns of knowine that it has cW[

furninhnt which the law done not rnluity to l>uy or hohl Innds or dent in tit!"

• to be furnfahed, chnrgm are mode, atul where,or to carry t u the bu-Ine*4 tn C "

legitimatdy, for such informntjun. Ile . Its petition nileges it to be etepgel,"f,"

0.) BTJnTON s. TUlTE. EST

.gritect! to ench anenterprimens making an nhatrnetor--enn Mr.Tiurton-be plaml.

.. .trus of anotructs of all the tatin of all within the inw. without gising n tirivilege 9 real pruperty in a county. The enac is to one amth or cla,=a of mun that t.e denn!

.irof information in regard to the true to another? Therelator*n huwine-a in ahat val sf. stas of the relator, and na to of making aleatracts of titic, and furniah-

'shther it is other than a mcre intruder in ing the same to thone wanting thetu. for a k shat it now demrunin." The petition of compen=ntion. In such bu=ino It is nee.

iM rtistor alkt:t'l that it wn* Incortment- c>enry for him to consult and mnke mem-ed unur the inwn of the state of Diin- orruida of the contents of the=c books.

sare; that it had 1.cctmac the purvhnarrof lile hua!nma la a Inwful one.the name na be atuut 2.4uu r en= of 14ne land in the coun- the lawyer's.nnd why han be not the right te of tintsnt 4pu. had crw tel esh n.tre toin=pect andesamino puhtle rreoritain him

.or.anilla.nn.1 intratnlp nely (?r. sag.a.A hualnema nn wrtlnanny other permon ? If he ses cutting inrge egunalities of pinc. and  != mhuL out luvnue he uncu him Information er,s.santly purrlinalug mon Innd; ami. to for.prirnte gnin. how will it lie with the grwri.Le againat nniuirine ek fwtive tiLJna, dealer in real swtate,who examince the rec.

6re) ta prutttL ita richte and intermie onta t cfore he buys orec!la, and buyn or melle by providing for iter!! an ab=truct of all for private gain ? Any holding that = huts the lande in the county. The relator was out 11r.Durton from thein=pectionof these wr:nitted opportunity. to examine and reconts, for this reason nian shuta not ev-make abstrneta, as far as Stu own owner- cry othar person cicept the brayer,actler,

,bp orinterrat was concernel, present or or hoWP of a partkular lot of lands.orone pnefwytire; but the dispute was whether having a ?len upon it.or en necnt of one at had the r iht to gofurther.and insiston of them, netJng as such acent without fce karte; ocie* necommi>latfor.s, and the or reward. It cannot be inferrtwl that the tandim; of ad the r Ton!s. to ma ke an ab. legim!nture intended that this statute r act of titlet Dall the landrL1 C 'sunty, should apply only to a particular claan of eile the writer of the opinto n.c % f Jus- persons, s6a, for innrance, those only who tre GaArcs. patised temake antae prac. are Internted tu n partleular piece of land; tralsur:cstionst.f obotheles it tSe eayor and "perv+.s" meann all persons. I can

.ner relid I.cing affor led by wa vismas, see no dan r of grent abunes or in-oa mund of the dental of ti s' tit was convenict/cs nely to arise from the right w.-he relator had Int!olton t tny title toinspwt. nardne, or make note of pub.

9 - e rizht it claimed.bcenaea e v nuthor- lic records, eten if such right be granted

.~ ::rca to it by the state by % eliIt was to those who cet theirliving by selling the e tred was not d selomed, an 5 wnld not Information thus gained. The inconven.

'e ssnmel. Sa Ilmtch Co. v ?cwcre 51 tenecto tic oeice ls cuarded arainst by the Leh 147,149 IG N. W. Rep. 314 statute, which authoriscs the inenmtsent la thhs view of Ihe enac simrt :lted. I do t4) make rannonable rukm and n-gulations ant think that it 1* nny Authnrt

• hraring with reference tn the in>pettlon. And anninar it.c relator *u cinlm In thN came. when ahue are shown there will nodoubt Arul I cannot n ce with the opinion of Ise found by the legimlature or the courts a thi* court. or the reasong given (nr it. In remely for them. It la pfa!n to me that Webber v.Townicy. supra; nordol anticl- the legislature Intended to ammert the richt pate that hardly ary,if any, of the rtsults of all citizens, in the pursuit of a lawfal innizinol by the writer o. i that opinion Imsinema to make euch czaminations of vnuld crer occur, if the holding were oth- the puhlle rworIs la public others as the erwise. If any of th*m should happen.the necroalty of their businewn might require.

law la powerful enough f(1 temedy them, sub}Mt to such rules and retrictions as and "soficient untr< t!>e day is the evil are renannable and prnper under the cir-then nf." I do not th. nk that anyeommon cumstancen. The respondent in this eine bw crer nhtnined in mis free government la the lawful cua todian of thcee snice-Isuoks, that would deny to rl.e people thervot the and la reuponsihte for their safe-keeping, r::htof freenecess tonnd public Inspaction and he may make and enforce proper re -

of public rivotda. They have an interest ulations, consis:ent with the public right, abrays in euch rrtords.and I know of no for the use of them. "Dut they are publ'c law. written or unwntten, that provides property, for puh11e une, and he has no that,lefore nn inspetion or exandnation lawful authoritytocrelude anyof the pub-of a pubHe record is made the citizenwho Itc from acrees to and examination and wishea to mnke it mnat show mome spe- inepretton thereof at proter acasons." It cial intert+t in much rwnnt. I hnre a right, follown that he han no r:=ht to demand

!!I aw fit.to examine the titic of myneich. any fre or compenantion for the privilege Imr a property, whether or not I have any of ancesa to the neurita. or for any exami-intermt in it, or Intend crer to bare. I nntion tirervnf not made by himarti or his al o have the rfaht to examine any titio clerks or depaths lie has no exclualve that I are fit, rworded in the publ.cofficns, right to scarch the rwonia nenin=t any Sr purpsw.cs of acillnc such information, other utisen. Lum v.1[cCarty. 33 N. J.

If I desire. No one has ever diaputed the Law.:M: 13oylan v. Warren. 33 Kan. 301, richt of a lawyer to enter the rcriater'a 1* Pae. Rep 174: State v. I:nchae.37111nn.

cmce.and examme the title of him cisent to 0:2. 35 N. W. Rep. 7: People v. Itschards.

,; and a= recordol, or the title of the oppo. 99 N. Y. Co.1 N. E. Rep. TA: Hannon v.

ncit nf hia client. and to char e bla client DehstsM t.60 WlaES.05 N. W. Rep. 30. It for the luformation so obtainnt. Thia la follown. in my opinton, that the prnyer of stone for prirnte gain am a part of the the petitioner must be granted nnd the 14 wyer'a sintly huminc=a. and ley sucnna of writ lanne sa prayed. tlee trintor naktn: ha u htch, with other Inimrm, he enrum hla thla writ co more than the statute glet,s Lrtad. L* pun what diff4uent fouting can , him, a

0

.-  ?

2ti6 NORTHWESTERN REPORTER,Yor 41.

Caawrt.cr. J., concurred.

CAMPBEt.t J. I think relator h&a such ma Interentas entitles him.smder the Lau a .

of IM. to me the book in question. and contiue my opinion to that point.

, suscxw voo. C, J., and Imu, J., did not ,

et t.

• SI!ch.) NOOA,CE o. FULL'EIL US uns x.ir.

• tcht, which can be enforced only by mandamus proceedings brought by Attorney General.

3. Records C=zi4-Citizes, to esferee riskt te Inspect pubile records of state by salt la own same., mest shew special laterest.

Ctizen. in order to enforce commen-Isw right to inspect public recor te in andator cen.

ers!*s oEce, to determine if public money is be.

In: properly expended by suit in his own name.

must abow he has special interest, not pos.

eessed by citizene generally.

4. Records C=al4-Newspaper editor, desirtog materitt for publicaties, held to have shows

'special laterest." entitilag him to esforco right to lespect geblic records le seit le sus name (Psh. Acts 1927. No. 84).

3fanagtr and editor of newspaper, wishing to inspect public recorde in enditor generare

.o5ce, to determine if public money is being Troperly expended. under Pub. Acts 1.CT. No.

M. in order to pubLsh each matters. Ac3J to bare shown special interest, entitling him to enforce common 4aw right to inspect each rec.-

ords by suit brought in his own name.

Petition for mandamus by rd. A. Nowack against Oramel B. Fuller Aeditor General of the State of 3fichigan. Writ ordered 1seued.

If necessary.

Argued before the entire bench, except POT 1 tit. J.

Jarnes A. Greene, of Lusing. for relator.

William W. Potter. Atty. Gen., and 3f. 3f.

Larznonth. Asst. Atty. Gen, for respondent.

3feDONALD J. 'Ite p!aintic seeks a writ of mandsmus to compel the defendant to per.

mit him to inspect certain public rvords is the omce of the nuditor general Terraining to the expenditure of public money, actborized by Art Se of the Public Acts of 100*. The set in question empowered the state administra.

tife tsnard to pay out cf the ceneral fund a sum of money not to exceed $25.000 to defray the expenses incident to the entertainment of NOWACK y. FULLER. Aeditor Geeeral.

of several states at 3lacMnac Mnd.

(No.71)

• 311cht an.

Supreme Court of 3!ichigan. June 0,1001 The pet!tton shows thet the platatiff is a

1. Records C=zi4-Citires has se rfght moder and ta? payer in the state ef 3Ilchl:1nt that statute to lespect state pubile records: "other publie records' (Camp. Laws 8915. I 3448). ho is the editor and twiblisher of a newstriper Climen has no right to inapect state pub- um as the 3HeWan ht; that in mi lic recorda, tan.ler Comp. T4w= 1915. I 33 s t faith and fer a Imt,1le Imrtw he dew!res to in.

relative to " county, city, township. town. vil. *inxt the records in quc* tion and publish la

!ste ochool district, or other.public records." his [. aper a true and fair statemcat of 'he stace "other public records" refers only to oth. expenditure of public money by the state ad.

er records is oSces specifcaCr enumerated. ministr:ttive board in defraying the extenses

2. htandamus C=m42-Records C=sl4-Cittres adenW Mm access to b rMs. Ad dat has commen.3aw right, esforceable by man.

dames, to despect public records to auditor his action in so daing has greatly hampered generare ottee. and injured plaintiff in his business. The de-Ctizen and taxpaser has common 4aw right fendant neuses his refusal to permit the to inapect public records in aud.cor general's of, plaintiff to inspect the recortis in his omce os See, to detenmne if public money is being prop. the ground that there is no public tuterest in erly expended; but such r.sht is one of puotic them, and that the plaintiff has no special in.

Osroe othee seems see same tes., and EEY.NL*MDER ta an Eer.Ntatseed Dienste and ledesen

~ 219 NORTH WESTERN REPORTER (1[!ch, 750' terest and is not in law entitled to their in- expended'and how thvir,businese was being '

spection. , conducted. There is no such law and never

[1] The plaintiff bases his rlght to Inspec. was either in this country or in England 11r.

tion on both the common-law rule and statu- Justice 3forse was right in saying:

r tory grant. In 311chigan there is n,o statute "I do not thhik that any common law ever oN I providing for the inspectica of state g tablic tained in this free government that wouhl deny records. The statute relled un by the plain- to the people tb8 eof the right of free access to, tiff is section 3448, C. I 1915, which reads in and public (sspection of. public rn 3rds." Bur-ton v. Tuite, 79 31ich. 374, 44 N. W. 285, 7 L part as follows: R. A. 73*

• "Its 05eers having the custody of any coun-ty, city, township, town, village, school district There is no question as to the common-law or other public records in this state shall fur- right of the people at large to luntxxt putate nish proper and reasonable facilities for the in- document.s and records. %c right is based spection and examination of the records and on the interest which citizens necessarily (des in their respective 001ces," etc. have in the matter to which the records re.

It is entitled: late.

There remains to be considered the com.

l "An act to facilitate the inspection of the rec enon-law right of the individual citizen to la-

ords and $les in the offices of county, city and spect public records, in which he has an in-township c5cers in this state. + . terest in addition to his interest as a member of the general public. In the elaborate note In specifically enumerating the various of' to State ex rel. Wellford v. Williams, H L Sclat records to which it is to spoly, the stat. R. A. 410. where the Engitsh cases are dis-1 ute must be construed as excluding from its cussed, it is sold

,etMt all not expressly mentioned, except "In Englaud, by the common law, the right of those of the same gencrc' character. In inspection is very guardedly granted by the Brooks v. Cook. 44111ch. 617,7 N. W. 210,38 courts after a considantion of the pnvose for Arn. Repw 282, it is said: yhich it is desired. Thus it has beef. denied

• But it is a sensible and weu-enderstood rule when tne inspection was desired for private, of construction that when after an enumera. rather than public, purposes."

It will be noted by reference to the English e r ce t er cas a the et r c see us understood to be cases of the same general cases that the courts were seldom called upon character, sort or kind with those named." to enforce a private individual's right to in-spect public documents and records, except -

• In the title of the act in question the op- where the inspection was desired to secure eration of the statute is restrleted to the pub- erldence in a pending or prospective suit lic records of certain spec!8ed offices. N Accordingly there was formulated the foi-body of the act contains the same restriction, lowing commondaw doctrine:

but is foUwed by the words "other publie At common law, every person is entitled to records

• Applying the rule of construction the inspection, either personally or by his sient, announced in Brooks v. Cdok. supra, the term of public records, including legislative, execu-

"other public records" refers to other public tive. and judicial records, provided be has ao records in the ofnces speci8cally enurnerated. interest therein which is such that would enable

%i1. rule of construction excludes state pub. him to maintain or (eMnd an action for which lic records from the operation of the statute. the document '

er record sour,t t can ,furjh

[2] In the absence of any statutory grant "[4 C '

i of inspection, the question in issue tnust be determined by a consideration of the general When the procedure which was used for the common-law principles relative to the right of enforcement of the citizen's right to inspect l citizens to inspect public documents und ree- puldic records is recalled. It will appear that ords. If there be any rule of the English com. the doctrine above quoted is not so much a mon law that dentes the public the right of dental of the right to Instwt as it is a decla-access to pub!!c records, it is repugnant to the ration of the Interest which a private in-spirit of our democratic institutions. Ours is dividual muet have to avnll himself of the n government of the people. Every citizen remedy for the enforcement of his richt. At ruh"e. In Stichigan tho peuplo ehrt by puins- omimon Inw, the indivhlunt citlwn ng n mem-Inr vote nn uuditor genernl. They prescrpm, ler of the public hnd a richt to lumpvt: but, his dutles und guay his nnhiry. 140 la respiired if in=p etion was refuel, he sudd only en; to kwp a true account of the exp nditure of force Ida right by mandumus proceedings in-nll public moucys, and is answerable to the stituted in his behalf by the Attorney Gen-peoid e for the faithful discharge of his du- eral. Ile could not sue out the writ in his tics. Ile is their servant. IIIs officfat books own name. Originsity the writ of mandamus and records are thelra. Undoubtedly it would was a preroga:lve writ, supposed to proceed be a great surprise to the citizcas and tax- from the king himself, who sat in his Court payers of Sfichigan to learn that the law de. of King's llench: and it was formerly s!.

nied them access to their own bods. for the lowed only in cases "a!Tecting the soverelgu.

purpose of seeing how their money was being or the luterests of the Eublic at large." la

- - - - ~_ . _-

Stich.) - NOWACK v. FtlLLER m

, tsis N.W1 t!me, the right to the writ was extended" to and legitimate, if the object le to obtain infar.

the private Indiviitual. mation as ta the management and enndition of the afairs of the corperntlan. In nrefer to enahin 11ut mandsmus in hated on laterent, and the the abanhoteler to determine whether any and Indirlilual mas not allowed to ano out the a peM AN nessary to estaMah or main.

writ in his own name. unless ie ceutd show taan his rights. or in order to enable him to dm.

some siwlal Interest to be enforced; that is* charge his corpnrate duties. Iluylar v. Crar.a some Interest different from his Interest as a Cattle Co, to N. J. I;q. 332 [2 A. 274]. Or.

member of the public. De courts held that, dinarily a unandawns wdl be awarded, whenever 6 cutitle him to the writ, his Interest must sa snapection and esamination are necennary.

he direct amt tangible, and that the right to fee any reassa. to protect the Interests of Ll;e stockholders, present or prospective and le ant insiert putdie reentvis to swure evidence for **"N" a lawsuit was much nn Intercast. ity this the ' ' " " I**" #* $**d T* I 8"7 I8PT'M' <

1. "'3"*

canrte dtd act nwan that he had no right to In*Iect tie t onks unican he wanted to unn Sce, also. Stone v. Kellogr.1C5 Ill.192.

them an evidence, but they meant that they 40 N. P. 7:2. 50 A rt SL ltep. 240. In re Stein-would not issue the extraordinary writ of way,1W N. Y. 250. 53 N. E.1103. 45 f. It. A.

mandamns to etform a private right of in- 461, l' eve er rel. Etishop v. Walker. 9 Stich.

spection. unicss the purpose was to use It in 329. and Woodworth v. Old Second Nat. Tinnit, some pending or prospective suit. De rute 154 SIlch. 450,117 N. N. 603,118 N. W. M1.

adopted amounts to a restriction on the cit!- h Woodworth v. Old Second Nat. Bank.

rn s renacdy rither than on his tii hts. As a the court held that. **in the absence of any citizen nrf taspnycr. he had the right of in- statutory provision, a stockholder in a corpo-spection; but, when he wanted M use It for rntJon has a common-law right, in a proter prtute purpn=cs, his rf:ht wu rc tricted e b.T came and for a proper purpose. to inspect cor-the limited remedy which the courts allowed porstw r= cords and documet ts." and quoted him for its enforecreent. Ife had a naked with approval from IInylar v. Cragin Cattle right, for the enforcement of which the law Co supra, as follows:

provided no remedy. "And they are enti,let to such laspection.

This rule adopted by the Eng!!sh courts ham thou:h their only objec*. at to ascertain whether no basis in reason or Mstice. It !s ab,urd to their affairs have acen properly conducted by hold that a man coulo inspret the pyblic Ftt- the directors er manaters."

ords, providir ; his pnrtme was to use the So, in the instant case. the plaintiff as a Information In some lit! cation. and to dent citizen and taxpayer has a common-law right him the right to inspkt for sors a other imr* to inspect the public records in the auditor pone that might be erlually beneficial to h!nk general's ofBee, to deterntne if the public

.It does not protect n!1 of his substantial rights money is being property expended. It is a and has not been recelecd with general favor right that belongs to his ettisensh!p. It is a la this enuntry. In IS It. C. I. I 100, p, 237 ruht which he enjoys la common with all it is sald t other cittzens, a public right, which can be

• So in this country mandamus wift lie to en- enforced only by mandamus proceedin s force a citizen's richt to in=pect pubtle records, brought by the Attorney General "It is not, irreencetive of whether t is macht in aid of and never has been, the polky cf the law to peeding or rentemplat_ed liti:stien nith respect permit private ind! Tid 9als the use of the writ to his persanal rights. Citing Clement v. Grs.

ham. ?S Vt. .00, 63 A.144. Ann. Cap.1913E. of 'candan*ns agains' public ofBcers, except in 1204: State v. Williams.110 Tenn. 549. 75 5. caaes where they had some special Interest.

W, S84. 64 f It A. 4te: Ferre v. Elliams. 41 not possessed by the citizens generally."

N. J.I4w,332. 32 Am. Ttep. 210:= eleo see State Smith v. City of Sadaaw. 81 Mich.123. 45

v. King. Anditor.154 Ind, C21. 57 N. E. 533. N W. 064 : Ifome 'lYlephone Co. v. Itallroad U** *I* "* III #h*

• in American esses, this questlan has attaen *** ' *

• moat frequently where there was a contrn- ff ""

verty aver the t!si,1 af a stoct.halder to In. ch.4) De plaintiff has not sought to en.

. apcct the banke and recore19 af hfe corparn. faim* hl* righte Llircuch the offico of the AL.

t lan. The recards of a cor crmfinn are puhtle torney Cencral. Ile han I;ccun this sult in as ta its i.tachhnMer*. luimetinn af books g, g g g gg g g e

nf puhtle nme rg t* imhject t the sama tions se in the en=a of corporation hanica rentet$. must ahnw that he has a spedal Intemet, not Imanc 1 by the ettisens generall3 Apart

! I Greenicaf on Thld$nce (16th Ed.) l 4L. In from his pubile interes* his petittur shows disemstne this qncation in Foster v. White, that he has been hampered and injured in his 56 Ala. 407g4 So. SS, the court said: .

businev by the refusal of the defendant to "We do not agent to the narrow lim:ta to alb>w him to inspect the records in his office.

which the jurisdiction is ennnned in King e. This is a special interest. Is it a sut!!cient in.

l 3ter. Tailne's Co 2 Bern. & Ad.115: tt.at is. ter'.st to entitle him to the a.d of this court that the marect'.an c.ast be shown to be itetes. d MW k6&b sary la reference to some speciSe dispute or question depending. le which the parties bare (1* maasser and editor of a newspaper. It is an interest. The purynee smay be enttroly pro- published and circulated la Michigan. De spective; and as examlantaea would be proper sails news to the people thrgh ,the Ene*. lum o

219 NORTH WESTERN REPORTER O!!ch.

732 of his paper. In a proper and lawful manner, he has a right i e publish matters of pubite Interest. The citizens and taxpayers of this state are interested in knowing whether the puttle usiness is Setog proterly managed.

Dy denytag him awess to the liutt ? records for the purpose of securing such latc1nstfun.

Je is deprived of legal rights for which be is entitled to redress by the writ of mandamus.

It is the plain duty of the auditor general to l

exhibit his ottics i records to any citizen of 311chigan who dedres to inspect them for any proper and lawful purl =>=e. to circumstantes not dcP*tmental to 'the public business.

Le writ will issue, if pecessary.

f FEAD, C. J and NOttTH. FELTAWS.

W1EST CLARK. and S!!AIIPE JJ., concur.

L -e-:

ATTACHMENT C Report No. 2786 of the Attorney General of Michigan and Unpublished Attorney General's Opinion dated February 3, 1972

REPORT OF Ti!E .tTTOltNEY GENERAt. IpO ST.tTUTORY CONSTRUCTION-l>EFINITION OF' TER.TI%With*u i the meaning of Section 430. Act 113. Public Arts of 1331 (.sc+. 03.;60. 31.5.A.),

the term "public records" includes lists of county raad comr:lolon em.

playees: *lan ful purpowe" means such purpose a* ub-erses any leritinute interest; "any person

• means all persons, whether or not citizens or taxpayers of the corumunity.

No. 27S6 November 7,10,6.

31L W. CE.tr.LEs KINGSLEY.

Prosecuting . Attorney.

Branch County Buelling.

Coldscater. Mich agen-Dr_n 31n. EssCater :

In your letter of 8eptetul-r 14.1%6 referriu to the refusal of the Brauch County nond Commi -lon t. p rrnit inspe(tion of a li-t of its employees. you asked the meanin; of the terms "public records. " lawful purpose." and 'any person." within the meaning e.f 8ection 4tc. Act 20s, Public Acts of l'41. the .

applicable language of ubich is as fottows:

" Inspection and use af public recorde- Any ofrer having the custody of any county, city or t wwn< hip reentds in this state who Wall when re-einested fall or neglect to furni-h protier and rea="t.nlile facilities for the in*pection and evtuinatian of tta records and alc< in his et".ce and for making 'netuurauda of tran-cripts therefrom during the u<unt business hours, which shall not be lew than 4 hours4.62963e-5 days <br />0.00111 hours <br />6.613757e-6 weeks <br />1.522e-6 months <br /> per day. to aur person havine occasion to tunke examinatiori of them for any lorful purpo-e sh.ill be gulity of a miulemeanor, * * * "I DeSnitions of the term. pubile records." relied upon in other jurisdictions tary in degree of liberality as to tr>th fairly include and fairly exttude the record here involved. though no case inratring preci<ely a record of this nature has been discovered.

"A public record i=. strictly speaking. nue made by the public odcer in performance of a duty the Itumediate purpose of tvhich is to disseminate information to the public. or to serve as a meumrial of ometal transactions

. for public referena."2 -

"Wheneret a trritten reevrd of a transaction of a public omeer in his oSce is a conrcrient, and <spprof riette uta.le of di-charging the duties of his offia and is kept by Na as >uch wl. ether reptfred by express prn-etsion of law or not, sush a retterd is a public record."3 The 311chigan court has treated this anatter on numerous occasions.4 but has not furnished a detinition of the term "public record >J' Ilowever, the Xotrack3 case retognized that the summon law richt of in-pettion of public records stems from the public intere*t in the tuatter to which the records re-htte.s specifyin: that the pror+r mana:ement of a pr.t lic edice is vf public interest and records relatin: thereto are putilie reconh. This clearly involves somewhat more than a strict dennitinn of the terna "liublic records."

It unuld wem rea*onatela- to au::est. therefore. that ? talid inquiry int <.

the tunnagement of a public etNe may invohe a evrnideration of the o20e empinyees; that the public intere-c fairly extemis to knowledge of identities of employees; that a list of sud. employees is a put.lle revurd subject to in-spection by the public.

Neither p.esib'e abu.-e nur of!1ce Incuurenieuw may be presuptmed. In the event the right of inspection is recognized, because the stuture authorizes the 50 t.194*, s.e irm3 : 3tkh. stat Ann. see. 29.te

• !'coole er ut. sten = tron r. linrr=r

'Conerer r. Bd. of I'4. of A no M *.I tt. tre

n erewt.1 M $ . Tim.

t*tak .Ws. :s; P. :<l *Ct.

Wesrm 4 c. .i n.serw fir = crest. 0 Keesp. 54 3!k9.1::: Keleme.v.4a L1h h. ctre

1. ig nortos O.'=e. Kgsg egc.,c.C, Testr.

wary74aft

.st rt,14s  : Br9see

t. h. T.C314ch en t

Weireck e .4 w6ter tie, evil, ibid.

4.G.O. 2 13. Oct. t2. t3%.

W_-___.__---___-__-_---___-_______-_-_-_.--___-_-..____._.--.. -

646 REroRT or THE AW)RNEY GENERAI, of5cer in question to make reasonable rn!cs and regulations with reference to the inspection.t In respect to the statutory phrase " lawful purpose. uur W.urt has said:

" * *

• It is no answer to say * *

• that the purpose intended * *

• is not a commendable or proper one, so long as it is out criminal * * * "o

" * *

• It is also contended that the relator's business is disreputable; that he is a " tar-title shark / and is therefore not entitled to the exami-nation of this book for a

• lawful purpose'

~eee "The relator's business is lawful, and recognized and encouraged by the tax laws; * * *"o

" * *

• His bu<iness is a lanter one. the same as is the lawyer *m. and wbe has he not the right to inspect and examine public records in his I usiness as well as aur other person? * * '"

" * *

• It is plain to me that the Leristature intended to essert the right of ull citizens. la the pursuit of a lawful bu<iness, to make such examluations of the public recc.rds in publit offim as the necessity of their bu iuess might require, subject tu euch rules stad restrictions as are reasonabla and proper under the circumstances. * * *"18 The wurt has indicated. then. that where the purpose of the inspector in-ruires a pursuit of his buCuess interests. such business being lawful, the qualification of " lawful purp-e" 14 met. The we rd "businew" in this contest refer, not only to commer:1a. enterpri>e. but facinde* any le=itimate interest.

Finally, we must consider whether ru rizht of inarn etion antiles to a party wir is not a citireu uf the (omtuunity where the record < are kept. The statute provides that "ary 1+rw.n" may insig ct. It duas m.t limit such right to citi-zett or farleyers of the localitr where the record < are kept. and no good reamon to so interpret the plain lanzurige of the statute pre <ents itself.

It remains only to be putated out that this Icrti<ular <!ue< tion is further tornplicated by the nature of the remede which terre

• to enforce the right.

311thigan has aciol.ted the policy of denyin: nuindatuus in the abwnee of a special interest. mandamus being a di-cretionary writ. But. cases refusing the writ are rare. and. in the Xxterck en-c. the t=ntrt held that where refusal would hamper ac.1 injure petitioneri bustne<< intere<r. th;it was su:".icient to warrant relief.

We conclude as fodows:

Within the meanicz of N 2. W. Art 3:5. L'ublic Acts of 1931 f 8ee. 23J00.

3tich Stat. Ann.s. the term ?public remrd" includes a !!st af county road summis<1on employees: " lawful Imrime" means su.-h putiv4e as subserves a nny legitimate intere<t: and. " ant lerson" mean< all persons w hether or not they are citizens or taxpayers of the mmmunity.

Very truly yours.

Tii03!AS II. KAVANAGH.

SILB:dcr: mis .ifteracy Generet ta artes v. Teire, is Stich. 3t3

• sron r. Emers 54 atlet.133.

'A strh een r. R ur6 err. So Sticle. 443.

"JBarf ew r. Tv'tr. itud i

l l

l l

i 1

'. February . 3, 1972 Mr. Thomas Kiser, Jr.

.~ *.

Prosec'uting Attorney 634 West Grand River '

ilowell, Michican 48843

~

Dear Mr. Kiser:

~

. . Ro: City E=ployees' Galary, Disclosure of Answerinc your lether concerning. disclosure of individual salary figures of cisy e=ployees to a newspaper reportor, you state that tne reporter has been refused access to cuch fi Gures. Prca tne enclosures it appears that the city council at one tir.c voted unanimously to uithhold the fi;<.ures from the press. The city is described as contending that furnish-inc a salary schedule er plan showinn various categories and stops without disclcsing the identity of occur.cnts thereof is sufficient. Protection of the privacy of the individual cmployee $s also a concern of the city. .

The press, on the other hand, contends that individual salary ft'ures are public information under the law and should be available, with other city records, for public inssection, to permit analysis of existini; and proposed budcots.

Revicw of'the covernin statutes does not reveal any basis for excludin;; fron public records those pertaining to the individual salaries of indivicual public caployces. Since those are public records of public cupleyces paid from public funds, it is my conclusion that the press is clearly entitled to see said records. -

e.

In Nowack v Auditor Gen 3r.il, 243 .'!ich 200 (1923), it was held that a newspaper coitor, wishinq to inspect records of the auditor . general relatin.q to entertainment expenscs incurred t - --

f nr. Tho:nas Ki:cr, Jr. -

Pace 2

• in an' annual gov.ernor's conference.is a citizen having a

,special interest in the natorial and has a common-law right to. inspect said records, which rignt is enforceable by man-damus. At p. 208, the court said:

, "....He 15 the manager and editor of a news-

. paper. It is published and circulated in Michi6an....In a proper and lawful manner, he has a right to publish matters of public interest. The citizens and taxpayers of

-this state are interested in knowing whether the public business is being properly -

managed. By denying him access to the *

, public records for the purpoco of securing '

such information, he is deprived of legal rights for uhich he is entitled to redress by ,the writ of mandamus...." .

The ruling was recently re-emphasized in Booth Neusonners. Inc.

Y Muskegon Probate Jud.~e, 15 Mich App 203 (1965), holding that a newspaper has the riGnt to inspect the will of a deccdent filed in the probate court. At p. 205, citing the Nowack case, the court said: .

~

"The fundamental rule in Michigan on the matter before us...is that citizens have the general right of free access to, and public inspection of, public records...."

I would add, however, that requests to review in,dividual salary records should be made at reasonable times during business hours in such a manner as not to interfere with the conduct of public business , and that further, the private dossier of individual employees containing personal and family infornation should not be disclosed, where such disclosure might inflict harm or injury to the employee, unless the employee has given permission, except upon court order. ,

The amount of salary paid to each enployee of the city, in short, is a legitimate concern of the public uhich pays his salary, constitutes a part of the city's public records, and when requested to be viewed by a member of the press, must be made available. -

, . Tours sincerely,

}

. PRANK J. KELLEY A'ttorney General

• \

gy .33- -

J

.